


'>72. 




ANNUAL ADDRESS 



GEADtJATmG CLASS 



ifj 



WASKJNGTOf}, 0. C, 



HON. ROBERT S. HALE, 



Of New York, 



JTJnSTE 12, 1872. 



PUBLISHED BY ORDER OF THE 



WASHIKGTOJT, B. C. : 

fl. SEf^ESFOP^Oj PRINTEJ--^, I^Jig PENNSYLVANIA AVENUE. 

1872. 



ADDRESS 



smm 



BY 

HON. ROBERT Sr^'HALE, 

Of J^eio York, 
CTTJISriE 12, 1872. 



^% 



PUBLISHED !3Y <iRDER o!= tHE CLASS-- 



WASHINGTON, D. C. : 

f^. BEf^ESFOf^Oj PRINTEF^, -1^19 PENNSYLVANIA AVENUEi 
1873. 






^E^semii 



/ f'7-2 



Name. 
ABBOTT, HOWARD S. 
ADDISON, W., Jr. - 
APPLETON, W. H. 
ARNOLD, STARK W. 
BERRY, E. P. 
BIXLER, J. W. 
BLACK, L. C. 
BOWEN, PAUL T. 
BRICE, A. T. 
BROWN, EUGENE J. 
BURBAGE, W. D. 
CAMPBELL, F. L. 
CARPENTER, Z. T. 
CHEW, J. J. - 
CLARKE, LUKE - 
CLARK, W. P. 
COON, B. C. 
COWIE, L. T. - 
CRAGIN, C. H., Jr. 
CRANE, WILLIAM F., 
CURTISS, H. R. - 
DeCAMP, E. F. 
DeMATTOS, JAMES P. 
DOUGLASS, SILAS J. 
DOW, J. E. 
DURNALL, J. B. 
DYE, P. E. 
EARLE, GEORGE 
EATON, RAY P. - 
FORNEY, PIERRE W. 
FOSTER, R. F. 
FOWLER, EDWARD S. 



Jr. 



Residence. 
Pennsylvania. 
District of Columbia. 
New Hampshire. 
West Virginia. 
District of Columbia. 
Indiana. 
Ohio. 
Michigan. 
Georgia. 
Ohio. 
Ohio. 
Ohio. 

Connecticut. 
Disti'ict of Columbia. 
United States Army. 
District of Columbia. 
Wisconsin. 
Iowa. 

District of Columbia. 
Pennsylvania. 
Connecticut. 
New Jersey. 
Illinois. 
New York, 

District of Columbia. 
Colorado. 
Iowa. 
Maryland. 
Maine. 

Pennsylvania. 
District of Columbia. 
New York. 



i 



Name. 
FTTNK, LEE W. - - 

'GALPIN, S. A. 
HAYWARD, ALLEN B. - 
HENDRICKS, ARTHUR 
HENSEY, T. G, - 
HOUSE, J, W, 
HOWE, F. H. 
JOHNSTON, J. M.. 
KING, GEORGE A. 
KREIDLER, E. A. 
LALLY, THOMAS R. 
McLAIN, EDWIN J. - 
McKENNEY, W. A. 
MEGUIRE, JAMES F. 
MIX, FRANK T. - 
MOSES, MONTAGUE T, 
NEWLANDS, JAMES 
PARTRIDGE, G. W. ; 
PINNEY, A. S. - 
PLATER, MAYHEW - 
POSTLEY, CHARLES E. - 
POTTER, HENRY G. - 
QUAIFFE, ALFRED R. - 
REIGART, T. J. 
RITTENHOUSE, SAMUEL W. 
ROWE, W. H, 
RYAN, MARTIN - 
SEAMAN, WILLIAM H. 
SICKLES, D, KINGSLEY 
SKINNER, SAMUEL J, 
SMITH, WALTER V. 
STEPHENSON, F. D. - 
TURRELL, J. D. - 
VANAERNAM, C, D. - 
WILLARD, THOMAS R. - 
WILLIAMS, ROGER - 
WORRELL, B. F, - 



Connecticut. 

New Hampshire. 

New York. 

New York. 

Indiana. 

Wisconsin. 

District of Columbia. 

Minnesota, 

New York. 

Delaware. 

Maryland. 

District of Columbia. 

Pennsylvania. 

District of Columbia, 

Wash. Territory^ 

Illinois. 

Michigan. 

Iowa. 

Maryland. 

Tennessee. 

Ohio. 

New York. 

Iowa, 

District of Columbia. 

District of Columbia. 

Virginia. 

N'ew J'ersey. 

Michigan. 

North Carolina. 

Oregon. 

Illinois. 

Michigan. 

New York. 

Illinois. 

New York. 

New Jersey. 



IH^I 



Washington^ D. C, July 12th, 1872'.- 

Sir : — On: behalf of the graduates af Columbian College Law Depart- 
ment, Class of '72, I have the honor to request for publication a copy of 
your address delivered at the Annual Commencement, June 12th, 1872. 
Very respectfully, 

Your obedient servant, 

LEE W. FUNK. 

Hon. Rgbt. S. Hale. 



Washington, D. C, July 19th, 1872. 

Sir: — In conipliance with your letter of 12th inst., requesting a copy 
of my address delivered at the Annual Commencement of the Columbian 
College Law Department, June 12th, 1872, I have the honor to enclose the 
same herewith. 

Very respectfully. 

Your obedient servant, 

ROB. S. HALE. 
Lee W. Funk. 



A^DDEESS. 



Young Gentlemen of the Graduating Class: 

Yoa^i- term of pupilage lias passed, and you are about 
to enter the ranks of the practitioners, i.e, the workers in 
the law ; but it is to be trusted that in ceasing to be pupils 
you do not propose to cease to be students. To the faithful 
follower of either of the learned professions, study is to end 
only with his professional life. The instruction you have 
E-eceived in your prescribed course of lectures and text books 
has been, at best, but a meagre outline, to be filled up and 
rounded and enlarged by ceaseless study and observation 
and thought during your whole professional course. 

We ordinarily speak of the study of the law as divided 
into two great branches, the theory and the practice ; the 
first and larger branch including the whole range of legal 
dogmas and principles, bj^ the application of which all legal 
questions and controversies are to be determined; the 
second confining itself to the more mechanical process of 
presenting the case in proper form, by process and pleading, 
by motions and rules, and applications and answers, judg* 
ments, executions and appeals, and all the complicated but 
often necessary machinery of the profession for the applica* 
tion of the principles to be derived from the theory of the 
law. 

With too many these tw^o divisions are considered as 
covering the whole range of legal study and acquirement ; 
but there is another department, involving graver questions 
even than these, questions which may rightfully be called 
the " weightier matters of the law," and in comparison with 
which these questions of theory and practice, essential as 
they are, must be taken ias the " nient, arise and cumen" of 
the profession. I refer to the ethics of legal practice, the 
moral obligations, rights and duties of the lawyer in his pro^ 
fession. 



6 

In proposing this as the subject of my brief discotifse to 
you this evening, I must, of course, limit myself to the dis- 
cussion of those principles of ethics which are of peculiar 
application to the lawyer. In doing this let me not be un- 
derstood as ignoring or losing sight of that broad and univer- 
sal field of ethics which includes man in all his relations. 
As the man includes the lawyer there is no topic pertaining 
to the moral relations of man which does not constitute a 
proper and indispensable subject of thought and study to 
the true lawyer. 

But the limits permitted to an address of an evening will 
be found all too narrow for a bird's-eye-view even of ethical 
principles pertaining exclusively to your chosen professsioUy 
the moral relations of the lawyer to his clients, to the courts 
and to his profession, and his co-relative rights aud duties 
as to these. 

The relation between lawyer and client has been often 
discussed, and in the opinions expressed concerning it, by 
those whose positions and characters would seem to entitle 
them to respect, there has been the widest difference. 

It is a relation which has, in some respects, no parallel or 
analogy among all the other relations of life. When the 
client is driven to the courts to prosecute his rights, to de- 
fend himself against attempted wrongs, to vindicate his 
property, his reputation, his liberty or his life, from the 
sanctions of the laws with whose violation he is charged, he 
is driven of necessity to place himself and all that is his in 
the charge and control of his counsel. It is the place and 
office of the latter not merely to advise but to direct and 
control him so far as the management of his case is concern- 
ed. I^othing short of this absolute direction and control of 
the case can satisfy the just demands of the lawyer. Should 
it be refused in matters which he deems vital or material 
to the cause, he cannot with either safety or self respect re- 
main in charge of it. His client is, therefore, so far as the 
case is concerned, delivered into his hands, bound hand and 
foot. This surrender of control carries with it, of course, 
corresponding responsibility and obligation, in the ratio of 
the importance of the interests involved. Where the con- 
sequences of the suit involve the life, the liberty, or other 
dearest and most important rights of the client, the weight 
of the responsibility can hardly be over estimated. The 
client has the right to demand labor, unremitting diligencCy 
that shall never flag, ingenuity, study and knowledge, to the 



extent not only of the lawyer's actual, but of his possible 
attainments ; fidelity like that of the magnet, and secrecy 
like that of the grave. 

In short, he has a right to demand every effort of mind 
and body from his lawyer, to the full extent of his mental 
and physical power, subject only to those limitations which 
are of universal and paramount obligation. It is as to the na- 
ture and extent of these limitations that the widest difference 
of opinion has existed among lawyers, and in regard to which 
misconception has often proven so nearly fatal to the reputa- 
tions not only of individuals but of the profession. 

The extravagant and monstrous propositions of Henrj^, 
afterwards Lord Brougham, on the trial of Queen Caroline, 
utterly ignoring all limitation of the obligation of lawyer to 
client, have oftener found followers in practice than open 
defenders in theory. The deliberate proposition that the 
lawyer owes it to his client to save him and his cause at 
whatever cost to the rest of mankind, at the expense of 
truth, justice and honesty, has been seldom vindicated in 
Avords since its hasty and ill-advised utterance by its author. 
But in practice it is to be feared that it has not been with- 
out its mischievous effect To draw this line of demarka- 
tion, to determine accurately and carefully what things the 
lawyer may and what he ma}^ not do in the interest of his 
client, this is the difficult problem. It can only be solved 
by an appeal to obligations of higher origin and of wider 
application than those between the two parties in question. 
The lawj^er must remember, that in becoming a lawyer, he 
has not ceased to be a man ; that in assuming the obligations 
of the professional code, he has not discarded those higher 
obligations which bind the universal conscience of man; 
nay, that even in his professional character merely, he, as 
lawyer, has obligations to the court and to his profession 
which he may no more violate than his duty to his client. 

He is not absolved from his obligation to truth, justice 
and fairness, and given over to the service of injustice and 
falsehood by his donning the advocate's robe and assuming 
the charge of the case of his client, even though that case 
involve all the earthly interests of the latter. 

To follow to their fair and full results the doctrines thus 
propounded by Mr. Brougham, is to utterly confuse the 
moral sense, and to make the legal profession one which no 
honest man can follow. It is in the fancied discharge of a 
duty to one man, to ignore all duties to all other men, to 



society aild to God. It is to make the advocate the insti'U-* 
ment of injustice and wrong, and not of justice and right. 

The lawyer's duty to his client must be consistent with all 
his other duties; and hehig so, can never require him to 
pervert the law, to falsify the facts, to inflict unjustly " alarm^ 
torment or destruction" upon others. It can never justify 
him in being "reckless of consequences," in disturbing the 
moral foundations of society, or in "involving his country 
in confusion." He is to serve his client faithfully and zeal- 
ously as far as good morals, a regard for truth, his duty to 
the court, to his profession, to his fellow-men, to himself^ 
and to his God will permit. He who goes beyond this in the 
hope of a temporary benefit to his client, is recreant to his 
highest duties. 

The state of Vermont exacts from all admitted to practice 
in its courts the following oath : 

"You solemnly swear that you will do no falsehood, nor 
consent that any be done in court, and if you know of any, 
yofi will give knowledge thereof to the Judges of the court, 
or some of them, that it may be reformed. You shall not 
wittingly, willingly, or knowingly promote, sue or procure 
to be sued any false or unlawful suit, or give aid or consent 
to the same. You shall delay no man for lucre or malice, 
but shall act in the office of attorney within the court ac- 
cording to your best learning and discretion, with all good 
fidelity as well to the court as to your client." 

It may be said that this is narrowing too much the obliga- 
tion of lawyer to client, and a suspicion may arise that with 
the practical carrying out of the obligations of this oath the 
lawyer will find his occupation gone. But this idea is based 
upon an exceedingly narrow and superficial knowledge of 
the true character of the vocation of the lawer in the con- 
duet of causes before the courts. In fact litigation is not 
commonly, or indeed often a contest between knavery oil 
the one side and innocence on the other ; between unques- 
tioned right in the one party and unqualified wrong in the 
other. Such cases, to the credit of humanity, are compara- 
tively infrequent. The great mass of litigation, that is of 
questions to be determined by the court between litigant, 
parties, are questions of partial and qualified right on each 
side, ill which both plaintiff and defendant may not only be- 
lieve most firmly in the justice of their respective claims, 
but in which their respective counsel, looking at the ques- 
tions involved from different standpoints, attaching different 



welglit hot oiily to the real or apparent facts of the case, but 
to the bearing and application of diti'erent legal principles to 
those facts, may well and honestly differ in their convictions 
as to the ultimate right of the case. 

I^or does this difference of opinion, and the doubt as to 
the possible result of each individual case which follows 
from such difference of opinion, justify the often quoted and 
much abused taunt upon the "uncertainty of the law," for 
the law itself is in truth never uncertain. The law is fixed 
and absolute, but like all other subjects of moral science it 
is a complex, and not a simple, structure. Legal principles 
well settled, clear, absolute, each by itself, all true, all based 
on immutable and eternal right, running each in its proper 
and appropriate course, can never conflict with each other; 
for truth never conflicts with itself. But the facts of human 
experience, the combinations of circumstances attending 
every transaction of human life, are endless and infinite in 
their shapes and colors. Different legal principles applied 
to different phases of the facts which make up the whole of 
any case, may seem to conflict with each other, but the con- 
flict is only seeming, and the true and great vocation of the 
lawyer in the management of causes is to separate the seem- 
ing from the real, to show which of the aspects of a case 
upon its facts is the one to which the legal principles con- 
trolling the case are to be applied, and so to determine what 
legal formula is the one applicable to the entire case, and 
which shall speak to it so as to carry the weight of an 
authoritative determination upon principles of universal 
application* 

To borrow an illustration from the science of mechanics, 
difterent legal principles consistent each with the other, but 
independent in their action, and not moving in parallel lines, 
may be brought to bear upon the same state of facts. The 
case embodying these facts is the body to be moved. The 
line of its movement will not be the line of motion of either 
of the impelling forces by itself, but will be the resultant 
from them all, and that resultant is to be determined by tlie 
number of the moving forces, their line of motion, and the 
momentum of each. To flncl this resultant line of motion, 
to ascertain and establish the doctrine of the law which is 
deduced from all the principles applicable to all the facts of 
the case, this is the great problem of the lawyer. Surely in 
•every case it gives sutiicient scope for all the ability and 
learning, all the resources of study and ingenuity which 



10 

the lawyer can command, without driving him to fraud or 
perversion or casuistry. 

It is sometimes said, on the other hand, that a lawyer 
should take no position for his client which he would not 
deem himself justified in taking for himself. This proposi- 
tion goes to too great an extreme on the other hand. 

There are many things which the most high minded and 
honorable of lawyers may and ought to do on behalf 
of his client which he would think it disgraceful to do 
in his own case. He may and ought to secure to his client 
the benefit of a legal right which he would think it shame 
for himself to allege in his own behalf. Take, for instance, 
the Statute of Limitations: an upright and honorable man 
will never avail himself of this statute to defraud a creditor 
of a debt which is honestly his due ; but no lawyer could be 
justified in refusing to avail himself of such a statutory de- 
fence at the request of his client, even if he had reason to 
believe that the debt was in fact justly due. The Statute of 
Limitations is a wise statute. Whatever injustice it may 
work in particular cases, there can be no question that its 
general operation is in favor of right and justice ; and when 
the law establishes this as a defence to a claim in a court of 
law, the lawyer is bound to give to his client demanding it, 
the benefit of the statute. 

So, too, with the defence of usury. Li those States where 
usury invalidates the entire debt, although an honorable 
man would not refuse to pay what is justly due to his credi- 
tor, even where the statute interposed the defence of a for- 
feiture by the reservation of unlawful interest, the lawyer is 
bound to urge and maintain this defence for his client as he 
would any other given him by the laws of the land ; for it 
is to enforce and vindicate the laws that he keeps his position 
at the bar; and \t does not rest with him to say "because I 
believe such a law may work injustice in this case, I will 
deprive my client of the benefit of it here." 

Take the case of criminal prosecutions : the lawyer may 
be employed to defend, and it may become his duty to de- 
fend a person charged with crime, even where he is in his 
own mind fully convinced of his client's guilt. His client, 
if to be convicted and punished, is to be convicted and pun- 
ished according to law. The lawj^er is not made his judge, 
nor appointed to inflict upon him the penalty. His duty is 
to raise and submit to the court in his behalf, any and every 
legal question that may legitimately and fairly be submitted 



11 

to tlie consideration of the court as a protection to liis client. 
"While he may not pervert the law, nor falsify the facts, nor 
cast unjust imputation or saspicion upon others; while he 
may, in the language of the oath I have quoted, do no false- 
hood, nor consent that any be done in court, it is his duty to 
throw around his client in such case every shield and protec- 
tion which the law may afford him ; and if by the proper and 
legitimate use of his faculties and acquirements in such case 
the result may be the acquittal of one whom he believes to 
be a criminal, he does no wrong to the court, to his profes- 
sion or to society. The merciful maxim of the law is that 
it is better that ten guilty persons should escape, rather than 
one innocent suffer; and it is by a careful and jealous guard- 
ing of the rules of law in favor of persons charged with 
crime, and by this means only, that the innocent may be 
properly protected. 

The lawyer owes a duty, too, to the court before which he 
practices, and of which he is an officer. The bench and bar 
are parts of the same machinery for the administration of 
law and justice. They should never be in antagonism ; but 
each in his proper sphere should be independent, and yet in 
accord as to their great common end in view. The judge 
has a right to depend on the bar for fair, candid and cour- 
teous treatment. While the lawyer should always present to 
the court every legitimate consideration favorable to the 
cause of his client, while he should serve the latter with all 
diligence and zeal, he must never forget that to the court he 
owes a truthful and candid dealing. He may urge upon the 
court the importance of any legal principle that he deems to 
have a favorable bearing towards his client's case ; but he 
must never attempt to distort or misrepresent the law, or to 
falsify the facts of his case. Whoever attempts this sh(Hild, 
and, in the case of a competent and upright judge, always 
will, bring upon himself merited rebuke. The confidence 
of the court is the strong panoply with which the upright 
and able lawj^er seeks always to cover himself. 

Perfect integrity of character and conduct is, of course, 
due from the lawyer to his client, to the court, and to the 
profession, as it is due from every man to every other man 
in all the relations of life. Time will permit me to note but 
one of the phases in which this requirement should be borne 
in mind by every lawyer. 

As we have seen, the obligations of the lawyer to his client 
are qualified and limited by the duties which he owes to the 



12 

court and to the profession, as well as bj- his general moral 
obligations. But in the zeal and anxiety of the advocate for 
the interests and success of his client, there is always danger 
that the obligation to the chent, as the nearerj the more 
pressing, the more urged by present and immediate demands, 
will over-reach and encroach upon his obligations to others. 
To guard against this tendency, one rule should be rigidly 
adhered to by every lawyer who desires to faithfully observe 
all his obligations. He should keep aloof from every inte- 
rest in his client's cause, except his interest as a lawyer, 
under the pressing obligations I have already named. 

It has long been a proverb, as truthful as homely, that 
" the lawyer who tries his own cause has a fool for a client." 

Personal and pecuniary interest in the result of a trial has 
been found, by universal experience, to lead, almost invari- 
ably, to the over-stepping of the line of duty by the lawyer. 
It was mainly in this regard, though other wise considera- 
tions were added in the same direction, that the laws of 
champerty and maintenance have been for centuries estab- 
lished in England and in most of the United States, as safe- 
guards to lawyers, clients and courts. The lawyer who 
contracts with his client to take a share in the results of the 
litigation, — to divide the proceeds of the suit, or to make 
his compensation depend on the results of the legal contest, 
— disqualifies himself from fair and upright and honest 
action in the case. He is no longer the officer of the law, 
doing his duty justly, firmly and discriminatingly by court 
and client and associates at the bar. He has become a party, 
swayed by personal interests, not entitled to ask or expect 
the confidence of the court, and is degraded from the high 
position which he ought to occupy. 

I know that these ideas may seem to some exceedingly 
" old fashioned;" many will, perhaps, regard them as of the 
very Pharisaism of the law. I know how common and wide- 
spread, have become the practices I am condemning ; but I 
also know that the sentiments I express are to-day, as they 
have been for centuries, the doctrines of the wisest, best 
and purest of the profession. 

I beg you, young gentlemen, let no taunt or scoff drive 
you from adherence to these principles, so imperfectly and 
crudely outlined. Cherish them; and adopt each for your- 
self the 'maxim of the great dramatist, "To thine own self 
be true, thou canst not then be false to any man." 



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